Restrictions of Human Rights on the Basis of Public Welfare

One of the basic principles of Japanese Constitution is respect for human rights. However, the Constitution stipulates “public welfare” in 4 Articles, and recognizes restrictions on human rights. From its text, it appears that human rights restrictions are widely recognized. The debate over public welfare has gone through several stages, and understanding has changed. The aim of this article is to introduce the meaning of “public welfare” in Japanese Constitution, and how it works. After introducing the flow of the theory, this article will examine how it functions as a basis for restrictions on human rights

A Recent Case Concerning Article 9 of the Japanese Constitution, in which Plaintffs’ Allegations were Denied on the Basis of Lack of Violation of Legally Protected Rights Were Not Violated

This note introduces a case in Tokyo district court. In which case, plaintiffs alleged actions of cabinet and legislature were against Constitution. Plaintiffs claimed their rights (right to live in peace, personality rights, etc.). However, the court denied plaintiffs claim, because plaintiffs legally protected rights were not infringed. In the course of the judgment, the courts’ view on judicial power is shown. This note introduce the case from the perspective of elements of judicial power, especially requirement of concreteness of rights

Daijosai and the Separation of Religion and State

Daijosai, which is regarded as an indispensable ceremony for the accession of the throne, is a Shinto ceremony. Therefore, as Japanese Constitution defines separation of church and state, it is not held as a national ceremony (a state act) but held as a ceremony of the imperial house. On the other hand, since it is said to be an indispensable ceremony for the accession of the throne, government finds public significance, and the cost is covered by the national expenses. Criticisms that claim violation of separation of church and state arise, and many lawsuits were filed. This article reveals that behind the argument of Daijosai and separation of church and state, there are two contexts. On the one side, Japanese Constitution is drafted on the introspection of Meiji Constitution, and restriction of emperor’s authority, denial of his deity, abolishing state Shinto, etc. were sought. On the other side, the emperor have been religious and ceremonial being throughout Japanese history, and such existence is deeply rooted both in history and culture. The conflict between these two contexts is inevitable because the constitution maintained the emperor system and at the same time provided for the separation of church and state

Constitutionality of Non-Contentious Cases in Japan

In the United States, there was a debate on vesting Article 3 Court extrajudicial authorities, and United States Supreme Court have often denied vesting such authority. In contrast, in Japan, extrajudicial authorities (including those without element of dispute) are vested in courts since the age of Meiji Constitution, and only recently, questions are posed. Today, many scholars are struggling with this issue, and some approaches are shown: one is to conceive the limit of authority which courts can handle according to the distance from properly judicial power, which has dispute as the core element, and the other is to change the definition of the judicial power, and conceive that dispute is not an requisite element of judicial power. However, there arise doubts on both of the approaches. This article introduces the debate concerning the limit of judicial power and noncontentious cases with references to the history, and then present a direction toward a new approach. Instead of discussing the topic in specific details, this articles introduces a brief overview of the topic

An Unique Context of Separation of Religion and State in Japan

Article 20 of the Constitution of Japan stipulates the separation of religion and state. As in many countries, the primary purpose of the separation of religion and state is to guarantee religious freedom. However, in Japan, the separation of religion and state has the aim of preventing the revival of State Shinto or militarism. From this point of view, Article 20 of the Constitution of Japan can be understood as a kind of “pacifist clause.” This article points out the “pacifist” aspect of the separation of religion and state in Japan, based mainly on the drafting process of the current constitution, and plaintiffs’ allegations in the suits relating to separation of religion and state